In both H-1B1 and labor certification practice, the immigration attorney must always insist that the employer rely on a suitable prevailing wage survey to ascertain the salary that it will pay to the foreign national employee. The Department of Labor Employment Training Administration (“DOL” and “ETA”) relies on its own wage data found in the Occupational Employment Survey (OES). The OES is heavily flawed as it reduces the tens of thousands of occupations in existence into a few hundred broad occupational designations. Furthermore, the OES only uses two wage levels; Level I – entry level and Level II – non-entry level. The Level II category clubs the wages of all non-entry level workers, regardless of whether they are in the occupation for two years or ten years, resulting in a highly skewed average wage. OES also includes add-ons to salaries such as bonuses, commissions and other incentive payments. Furthermore, OES has also not taken into account the current economic downturn where wages have been depressed due to lay-offs.

Fortunately, the DOL permits employers to rely on private surveys provided they comply with the rigid criteria set forth in General Administration Letter No. 2-98. Despite DOL’s allowance of private wage surveys, employers have experienced great difficulty in having their private wage surveys accepted over the OES in labor certification applications as well as H-1B related enforcement actions. With the re-engineering of labor certification system underway that would significantly speed up the process (See “DOL Proposes New Labor Certification System”), it is hoped that the DOL becomes more liberal and flexible in accepting private wage surveys from employers.

Since one of the objectives of the redesigned system is to allow employers to conduct “real world” recruitment, employers should be able to rely on private surveys that more realistically reflect “real world” wages. Compelling an employer to rely on a flawed OES wage, inflated by bonuses and other discretionary items, will deter employers from legitimately utilizing specialized skills of foreign national workers that may be in short supply in the US labor market.

To be acceptable under GAL 2-98, the wage data in a private survey must be collected across industries that employ workers in the occupation. An employer, on the other hand, should be able to rely on surveys comprising other similar employers. A small, privately owned retail store cannot compete with a gigantic retail chain. A small two-attorney firm may not be able to compete with a firm of 500 plus attorneys. If employers are compelled to rely on cross industry surveys, rather than more specific surveys, they will not be able to hire a foreign worker even if there is a genuine shortage of US workers who would otherwise have been willing to work at the wage level within that specific industry or sector.

Take the example of a public interest organization in New York City that wishes to employ an intermediate level (requiring 3-5 years of experience) human rights lawyer who specializes in female genital mutilation issues in West Africa. A lawyer specializing in female genital mutilation is more likely to be hired by a not-for-profit public interest organization than by a private law firm. It would be more appropriate to rely on a survey that accurately reflects employers that would most likely utilize the specific specialization or skill within the occupation.

The Watson Wyatt Data Services (20001/2002), a private survey, differentiates between attorneys’ salaries in the profit and not-for-profit sectors. The wage for an intermediate-level attorney in a for-profit organization is $77,600 per annum and the corresponding wage in a not-for-profit organization is $62,800 in the New York consolidated metropolitan area.[1]

The OES wage for a lawyer in New York City, Level 2, is $135,054 per annum. Unlike the Watson Wyatt survey, the OES does not differentiate between for-profit and not-for-profit employers. Nor does it realistically approximate the wage even for profit lawyers at a middle experience level.

The employer in our hypothetical would wish to rely on $62,800, which is the most realistic wage for the position. In practice, however, a State Workforce Agency (which initially handles the labor certification applications on behalf of DOL) is most likely going to insist that the public interest organization offer this lawyer the OES wage of $135,054 per annum. As a result, this employer may be deterred from employing a foreign national who would bring unique and specialized skills into the United States. The employer’s adherence to the Watson Wyatt survey covering not-for-profit employers would get rejected, as it does not reflect an “all industry” survey. The Watson Wyatt survey may also be disfavored as it surveys employers in the consolidated metropolitan area of New York, which includes employers in Northern New Jersey, Long Island and Connecticut. On the other hand, the OES survey is more specific to New York City. The DOL prefers surveys that target employers within the actual metropolitan area rather than a broader area.

The DOL relies on a 1994 precedent decision of the Board of Alien Labor Certification Appeals (BALCA) called Matter of Hathaway Children’s Services (BALCA Feb. 4, 1994) (en banc) to justify its rejection of non-cross industry surveys. Matter of Hathaway Children’s Services precluded a not-for-profit employer from relying on a wage survey of other similar employers to justify its wage for a maintenance worker. In Mater of Hathaway Children’s Services, the BALCA overruled its earlier decision in Matter of Tuskegee University, 87-INA-561 (BALCA 1988), which permitted reliance on surveys comprising similar employers. It is hoped that the DOL will disregard Matter of Hathaway in favor of Matter of Tuskegee University. Indeed, even Congress, in the American Competitiveness and Workforce Improvement Act (ACWIA), exempted employees of an institution of higher education, or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization from the harsh effects of Matter of Hathaway.

Even if the DOL does not reject Matter of Hathaway, it should leave open the possibility for employers to submit surveys of comparable employers whose business may reflect on the knowledge or skills required to perform the duties of the job. In fact, Matter of Hathaway left open the possibility that different employers within the same occupation may require different skills from employees. For instance, the skills and knowledge to perform the duties of a mechanic for an airline are not similar to those pertaining to the job of an automobile mechanic. The DOL has not acknowledged this subtle distinction in GAL 2-98. In the above example, a public interest employer could establish that the skills that it requires from a human rights lawyer are very different from what a large law firm would require of a corporate lawyer.

[1]See pages 1022 and 1030, ECS Geographic Report on Professional and Scientific Personnel Compensation, Volume 2, Watson Wyatt Data Services 2001/2002. The Watson Wyatt survey is similarly a cross industry survey and does not distinguish between different employers, except for profit and not-for-profit employers. Thus, a small for-profit law firm may still be disadvantaged by relying on this survey.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.